Notice & Comment

Ohio v. EPA and the Future of APA Arbitrariness Review

Today was a big administrative law day at the Supreme Court. And while Jarkesy was the more anticipated opinion, I found myself most interested by Ohio v. EPA, which stayed enforcement of an EPA rule designed to control ozone pollution that crosses state lines. The decision was 5-4, with Justice Gorsuch writing for the majority and Justice Barrett writing the dissent, which was joined by the three liberal justices.

The Barrett opinion seemed to me the more convincing of the two. That said, absent a further study of the record I wouldn’t be prepared to debate whether the Court’s resolution of the merits prong was the correct one. I do think, however, that the decision could be important when it comes to predicting the future of APA arbitrariness review.

For one, although the Court technically held that EPA flunked State Farm by failing to address “an important aspect of the problem,” the nub of the disagreement concerned EPA’s alleged failure to respond to comments filed in the underlying proceeding. The Supreme Court mentioned agencies’ obligation to respond to “significant comments” in Perez v. Mortgage Bankers. But the obligation has lived most of its life in the lower courts, where it’s been frequently invoked despite the fact that nothing in the APA exactly says that agencies must respond to the comments they receive. In Ohio v. EPA, the Court seemed to take it for granted that failing to respond to a significant comment would make an agency decision arbitrary and capricious. For her part, Barrett imports the D.C. Circuit’s jurisprudence on the issue in her dissent.

More important, however, was the majority’s application of arbitrary-and-capricious review. There has been some speculation that the Court’s conservative members might be prepared to go down a “neoclassical” path by lightening up on review of agencies’ policy determinations even while they chip away at (or overrule) Chevron. And a small handful of recent opinions, such as Justice Kavanaugh’s opinion for a unanimous Court in Prometheus Radio Project and the various partial dissents in the DACA rescission case, might have been read to point in that direction. (All those opinions endorsed what was perceived to be the “conservative” result.)

That lax attitude toward reviewing agencies’ policy determinations was not on display when it came to the EPA rule reviewed in Ohio v. EPA. Indeed, Gorsuch’s opinion seems to bend over backwards to extend grace to the objecting commenters while holding the government to a higher standard of clarity. Again, I’m not in the weeds enough to confidently opine on who was ultimately correct. But it’s hard to read the majority as interested in cutting back too much on the administrative common law that has developed around section 706 (or section 553).

Hard look review lives on.

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